Following up on my last post regarding the latest ruling in Fisher, I’d like to continue the dialogue on the issue of public-sector affirmative action, and its relevance for the public workplace and other public domains, in light of the Supreme Court’s decision in Shuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) this past Term. Shuette concerned whether an amendment to a state’s Constitution, prohibiting the consideration of race in all state decisionmaking, including in public employment, public education, and public contracting, violated the federal Equal Protection Clause of the Fourteenth Amendment. Because the Court held that such an amendment is valid, as a practical matter this case should alert public universities and public employers in other states to keep in mind how they would justify their use of race-conscious programs—potentially both in the public voting arena and in the courtroom. In addition, the Court’s splintered decision in this case, and the differing interpretations of the relevant case law presented in this case, suggests the difficulty of resolving questions regarding how the courts should review state voter actions that affect the ability of state entities to use or not use race-conscious processes in various areas of public decisionmaking.

Shuette is part of the larger story of affirmative action in Michigan. In 2003, the Supreme Court decided two cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. In Gratz, the Court held that the school’s use of race in its undergraduate admissions policy was invalid under the Equal Protection Clause, while in Grutter, the Court held that the Law School’s more confined use of race was constitutionally valid. After these rulings, the University modified its college admissions program so that an applicant’s race would be considered in a more restricted manner. After failing to dismantle affirmative action through the courts, anti-affirmative action citizens and groups next turned to the state ballot box. The State of Michigan then engaged in a public debate and vote on whether to prohibit state actors from using race in any manner in their decisions and actions. A ballot proposal on this question, referred to as Proposal 2, passed by a 58 to 42 percent vote, resulting in a broad amendment to the State Constitution. This amendment, now found in Article I, Section 26 of the Michigan Constitution, prohibits all state entities from “grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Various interest groups and individuals in support of affirmative action challenged the validity of Section 26 under the Equal Protection Clause in Shuette. Justice Kennedy wrote the controlling opinion in the case, in which Chief Justice Roberts and Justice Alito joined. Justice Kennedy very clearly stated in Shuette that the Court’s decision in Fisher is not at all affected by this case, so that race-conscious decisionmaking in university admissions remains constitutionally permissible if strict scrutiny is satisfied. The different question in Shuette involved whether and in what manner a state’s voters may adopt a prohibition against all consideration of racial preferences in state decisions, with the focus specifically on public university admissions. Justice Kennedy viewed this case as one that primarily concerned the right of a state’s voters to exercise their electoral power to ban race-conscious affirmative action in the public realm, and upheld the amendment to the Michigan Constitution. Chief Justice Roberts filed a concurring opinion, as did Justice Breyer, who concurred for narrower reasons. Justice Scalia also wrote a separate concurrence, in which Justice Thomas joined. Justice Kagan took no part in the consideration or decision of this case.

Justice Sotomayor wrote in dissent, joined by Justice Ginsburg. Justice Sotomayor expressed hearty support for democratic voter action, but nonetheless argued that the voters in Michigan restructured the political process in the state so as to burden racial minorities, who would have to amend the State Constitution to pursue their diversity goals in public university admissions. She pointed out that Michigan citizens who want to pursue non-race-related interests would face less of a hurdle by only needing to influence the governing boards of each state school, who retain the authority to make all other admissions decisions not prohibited by Section 26. As a result, Justice Sotomayor contended that the electoral majority’s action in this case required strict scrutiny review by the courts under the “political process doctrine” established in the Court’s earlier cases, the last of which was Washington v. Seattle School District No. 1.

Justice Kennedy, however, disagreed with language in Seattle that he believed created an unnecessarily broad rationale, and also rejected the interpretation of Seattle by the court below (the Sixth Circuit en banc), which relied on Seattle to invalidate the amendment in Shuette. As Justice Kennedy put it in Shuette:

… Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities … consider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must be reviewed under strict scrutiny … In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.

… To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitutional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling.

Justice Kennedy in Shuette thus stated that the Court was not required to make a racial determination regarding the public university admissions policy changed through the amendment to the Michigan Constitution, and also found that this amendment was not subject to strict scrutiny.

On the other hand, Justice Sotomayor in her dissent asserted that under stare decisis, Seattle along with an earlier case, Hunter v. Erickson, are the proper precedents, and as such, strict scrutiny was required in Shuette:

Section 26 has a “racial focus”…That is clear from its text … Like desegregation of public schools, race-sensitive admissions policies “inur[e] primarily to the benefit of the minority,” … as they are designed to increase minorities’ access to institutions of higher education.

Justice Sotomayor, in directly applying the language from Seattle and agreeing with the Sixth Circuit’s reading of Seattle, found that the amendment in Shuette focused on race and inured primarily to the benefit of racial minorities, thus triggering strict scrutiny.

But the plurality, as well as Justices Scalia and Thomas, disagreed that the Court can or should properly decide when state action actually inures primarily to the benefit of a racial minority group, and asserted that the judiciary should avoid trying to determine such racial interests and classifications. They posited that such inquiries would contribute to racial divisiveness, and entrench racial stereotypes. But, perhaps somewhat ironically, the plurality’s position prompted Justices Sotomayor and Ginsburg to respond with a vigorous and lengthy dissent, maintaining that the Court cannot avoid such questions in the face of a restructured political process that operates to disadvantage racial minorities.

Shuette produced marked divergences on the Court. But under the plurality’s decision, state employers and universities ought to be prepared to make their case for affirmative action in response to any possible public or legislative challenge, as I point out in a forthcoming paper further examining Shuette.